On Proposition 8 Ruling, It's the Evidence, Stupid

Attorney, Lisa Bloom, a television commentator and daughter of well known attorney Gloria Allred, has a great op-ed at CNN that looks at Perry v. Schwarzenegger and why the Prop 8 supporters went down so thoroughly in defeat. As she notes, in political ads and talking points disseminated by e-mail, radio spots and other methods, unsubstantiated opinions and rank demagoguery can hold sway. However, once you walk into a court of law, the focus shifts to evidence, not opinion and mere religious belief (unless, of course you are one of Virginia's state court judges who ignores the Canons of Judicial Conduct and let personal religious belief form your ruling). The simple fact is that the Prop 8 supporters had no legitimate expert witnesses and that when all the smoke and mirrors were pulled away they had nothing but religious belief and religious inspired prejudice to support Prop 8. Here are highlights from Bloom's column:
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There's a big difference between a political debate about same-sex marriage and the recent hard-fought court challenge to the California ban, Proposition 8.
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In politics, anything goes: Vague, sinister comments about same-sex marriage threatening children or undermining the sanctity of heterosexual marriage were prevalent during the Prop 8 campaign. In court, same-sex marriage opponents needed solid evidence to back up these and other claims.
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Despite "able and energetic counsel," they never produced it. That's why they lost, resoundingly, in the federal district court. And that lack of evidence should dog opponents up through the chain of appeals that is now beginning, because appellate courts are required to review only the evidence in the court record and to give great deference to Judge Vaughn Walker's findings of fact. He was there, after all, presiding over the trial, and the appellate judges weren't.
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And what a lopsided trial he presided over. All the anti-same-sex marriage arguments imploded when subjected to the rules of evidence.
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Trials turn on admissible evidence -- primarily credible witness testimony or documents, in this type of case. And Prop 8 proponents did not have it. Over and over again, Walker's decision focused on the evidence, the mountain of reliable facts offered by gay marriage advocates, and the glaring lack thereof proffered by gay marriage opponents.
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Opponents offered exactly zero lay witnesses to explain, say, how their heterosexual marriages would be undermined by same-sex marriage, or how children would be harmed by a neighbor's same-sex marriage -- though these were central arguments made during the Prop 8 campaign.
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The evidence at trial proved that children raised by gay or lesbian couples are just as likely to be well-adjusted as children raised by heterosexual parents. That gay folks are no more likely to be child molesters than heterosexuals. That marriage has evolved in this country to allow for women's equality and interracial marriage. That no "undermining" of straight marriage would occur if marriage further evolved to allow same-sex couples to marry, too.
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In a nice trial "gotcha" moment, gay marriage advocates read in deposition testimony from two witnesses who were to testify for the other side -- yet their pretrial testimony instead supported the gay marriage advocates. Opponents offered no explanation for why their witnesses flipped. Another embarrassment.
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Ultimately, same-sex marriage opponents called only two witnesses, the founder of the Institute for American Values, who the court found lacked qualifications to offer expert testimony, and a Claremont College professor, who "sought to rebut only a limited aspect" of the plaintiffs' case.
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Given all these detailed evidentiary findings that follow ineluctably from the marriage opponents' failure to put on much of a case at all, and given Walker's finding that Prop 8 violated two separate constitutional provisions -- the due process and equal protection clauses -- it will be extremely difficult for an appellate court, following well-established rules of deference to lower court findings, to reverse.